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United States v. Mohammad

United States District Court, N.D. Ohio, Western Division

June 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
YAHYA FAROOQ MOHAMMAD, Defendant.
v.
YAHYA FAROOQ MOHAMMAD, Defendant. UNITED STATES OF AMERICA, Plaintiff,

          OPINION AND ORDER

          EDMUND A. SARGUS, JR., CHIEF JUDGE

         Currently pending before the Court is Defendant Yahya Farooq Mohammad's ("Defendant") Motion to Set Aside, Vacate and Correct Defendant's Convictions and Sentences pursuant to 28 U.S.C. §2255 (See 3:15-cr-358 ["Mohammad /'] ECF No. 389; 3:16-cr-222 ["Mohammad IF] ECF No. 70). The United States of America (the "Government") responded (Mohammad I ECF No. 390; Mohammad II ECF No. 71); Defendant filed a supplemental brief in support of his motion (Mohammad I ECF No. 391; Mohammad II ECF No. 72); and Defendant replied to the Government's Response (Mohammad I ECV No. 392; Mohammad II ECV No. 73). For the reasons stated herein, Defendant's Motion (Mohammad I ECF No. 389; Mohammad II ECF No. 70) is DENIED.

         I.

         Beginning on or about January 1, 2005 and continuing until on or about January 2012, Defendant conspired with others to provide material support and resources, and to conceal and disguise the nature, location, source, and ownership of material support and resources, with the knowledge and intent that such resources were to be used in preparation for an in carrying out: (1) the killing of officers and employees of the United States; (2) the killing of United States' nationals; and (3) acts of terrorism transcending national boundaries. (Plea Agreement ¶ 29 [Mohammad I ECF No. 251; Mohammad HECF No. 58]). More specifically, Defendant and his co-conspirators agreed to provide resources to Anwar Al-Awlaki ("Awlaki") for furtherance of "violent jihad" against the United and States and the United States military. (Id. ¶ 30). Further, Defendant and his co-conspirators knew that the material support they provided to Awlaki would be used by Awlaki

         On September 30, 2015, a federal grand jury returned a four-count Indictment charging Defendant and others with: Conspiracy to Provide and Conceal Material Support to Terrorists, in violation of 18 U.S.C. § 2339A (Count 1); Providing Material Support to Terrorists, in violation of 18 U.S.C. § 2339A (Count 2); Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349 (Count 3); and Conspiracy to Obstruct Justice, in violation of 18 U.S.C. § 1512k (Count 4). (Mohammad I Indictment [ECF No. 1]). The allegations in the Indictment primarily stemmed from Defendant's efforts to provide money to the terrorist leader Anwar al-Awlaki in 2009. (See generally id.). Defendant was arrested in November 2015 and ordered detained pending trial. (See Plea Agreement ¶ 36 [Mohammad I ECF No. 251; Mohammad II ECF No. 58]; see also Mohammad I Ord. of Detention [Mohammad I ECF No. 18]).

         While detained, Defendant solicited another to murder the judge presiding over his case, Judge Jack Zouhary. (See Plea Agreement ¶ 36). Defendant attempted to arrange Judge Zouhary's murder by having a fellow detainee contact a "hit man." (Id. ¶¶ 36-37). The "hit man" was actually an FBI undercover employee. (Id. ¶ 37). In furtherance of his plot to murder Judge Zouhary, Defendant directed his wife to make a $1, 000 down payment to the "hit man." (See Id. ¶¶ 38-39). Defendant's wife then provided an undercover agent posing as the "hit man" $ 1, 000 on or about May 5, 2016. (Id. ¶ 39). On or about May 16, 216, Defendant's wife and the "hit man" met again, and the "hit man" showed her a photograph that purportedly showed the dead body of Judge Zouhary. (Id. ¶ 40). After showing Defendant's wife the photograph, the "hit man" demanded the rest of the money from Defendant's wife, who said she had to first get in contact with Defendant. (Id.).

         Subsequently, on July 6, 2016, a federal grand jury returned a three-count Indictment, charging Defendant with: Attempted First Degree Murder of a Federal Officer or Employee, in violation of 18 U.S.C. § 1114(3) (Count 1); Solicitation to Commit a Crime of Violence, in violation of 18 U.S.C. § 373(a) (Count 2); and the Use of Interstate Commerce Facilities in the Commission of Murder-for-Hire, in violation of 18 U.S.C. § 1958(a) (Count 3). (Mohammad II Indictment [ECF No. 1]).

         On July 10, 2017, Defendant and the Government entered into a binding Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. (See Mohammad I ECF No, 251; Mohammad II ECF No. 58), Pursuant to the Plea Agreement, Defendant agreed to plead guilty to: Count One in case number. 3:15-cr-358, Conspiracy to Provide and Conceal Material Support to Terrorists, in violation of 18 U.S.C. § 233 9A; and Count Two in case number. 3:16-cr-222, Solicitation to Commit a Crime of Violence, in violation of 18 U.S.C. § 373(a). (See Plea Agreement ¶¶ 2, 18). Defendant agreed to waive certain rights, including his right to appeal his convictions, his right to appeal the sentence imposed, and his right to collaterally attack his conviction, by way of motion brought pursuant 28 U.S.C. § 2255. (See Id. ¶ 26).[1] A change of plea hearing took place before the undersigned on July 10, 2017. (See Mohammad IECF No. 252; Mohammad II ECF No. 59). During this hearing, the undersigned questioned Defendant about the Plea Agreement that he entered into with the Government. (See generally Change of Plea Tr. [Mohammad I ECF No. 257]). More specifically, the Court had the Government outline the facts that supported Defendant's offenses of conviction.

         As to Count One of case number 3:15-cr-358, the Government presented that the following facts supported the finding that Defendant conspired to provide and conceal material support or resources to terrorists, in violation of 18 U.S.C. § 2339A:

[A]t least as early as on or about January 1, 2005, and continuing until in or around January 2012, in the Northern District of Ohio and elsewhere, the defendant, Yahya Farooq Mohammad, admits that he did knowingly and intentionally combine, conspire and agree with Ibrahim Zubair Mohammad, Asif Ahmed Salim, Sultane Roome Salim, and with others known and unknown, to provide material support and resources and to conceal and disguise the nature, location, source and ownership of material support and resources, to wit, property and services, including currency and monetary instruments, tangible property, services and expert advice and assistance, knowing and intending that they were to be used in preparation for and in carrying out violations of Title 18, United States Code, Sections 1114, which is killing of officers and employees of the United States; 2332, which is killing of U.S. nationals; and 2332b, acts of terrorism transcending national boundaries.
Specifically, as part of the conspiracy, Mohammad and his coconspirators... agreed to provide funds, equipment and expert advice and assistance to Anwar Al-Awlaki to be used in furtherance of "violent jihad" against the United States and the United States military in Iraq, Afghanistan and throughout the world.
Mohammad and his coconspirators... knew and intended that the funds, equipment and expert advice they conspired to provide to Awlaki would be used by Awlaki in preparation for and in carrying out acts of terrorism, including offenses which would constitute violations of Title 18, United States Code, Sections 1114, the killing of officers and employees of the United States; 2332, the killing of U.S. nationals; and 2332b, acts of terrorism transcending national boundaries.
As part of the conspiracy, starting in approximately January 2009, Mohammad collected, solicited and raised funds both in the United States and elsewhere to provide Awlaki and planned to travel to Yemen in late January 2009 with coconspirators to deliver funds to Awlaki.
In order to raise funds for Awlaki in his planned travel to Yemen, Mohammad conspired with Ibrahim Mohammad to conduct bank fraud using multiple credit cards issued by multiple financial institutions.
Because Mohammad was sick, he did not travel to Yemen in late January 2009, but two coconspirators did and delivered the funds raised by Mohammad to an associate of Awlaki's.
The amount of funds raised by Mohammad and his coconspirators and delivered to Awlaki in late January 2009 was approximately $7000.
In the spring of 2009, Mohmmad agreed, again with his coconspirators ... to raise funds for Awlaki and to travel to Yemen to deliver the funds to Awlaki.
In order to raise funds in the United States, Mohammad collected approximately $17, 000 from Asif Salim and Sultane Salim for delivery to Awlaki. These funds were provided in the form of one check from Asif Salim in the amount of $2000 and three checks from Sultane Salim totaling $15, 000.
The checks were provided to Ibrahim Mohammad, who was then living in the Northern District of Ohio, who them deposited them into Mohammad's U.S. based bank account.
In order to transfer the money to Mohammad in the United Arab Emirates, Mohammad and Ibrahim Mohammad made payments for tuition and other expenses for a relative in the Northern District of Ohio. The relative's father then repaid the value of the expenses directly to Mohammad in the United Arab Emirates.
On or about July 23, 2009, Mohammad traveled to Yemen with two coconspirators to deliver funds to Awlaki. In Yemen[, ] Mohammad and his coconspirators provided the funds to an associate of the [sic] Awlaki's after they were unable to meet Awlaki. The amount of fund provided to Awlaki through his associate was approximately $22, 000.
On or about October 5, 2009, Mohammad received an e-mail from Awlaki acknowledging the receipt of the funds which Mohammad shared with other coconspirators.
In addition to providing material support to Awlaki, Mohammad and his coconspirators also conspired to conceal the provision of material support and obstruct the investigation into their activities. To further these goals, Mohammad instructed Ibrahim Mohammad to lie to law enforcement about the funds provided to Awlaki, lied himself to investigators, and deleted relevant e-mails.

         (Change of Plea Tr. at 25:21-29:2). The Court then asked Defendant whether the Government's rendition of the facts was correct, to which Defendant answered: "Yes, Judge[;]" and Defendant submitted that no part of the Government's statement was incorrect. (Id. at 29:4-11).

         The Government then outlined the facts that gave rise to Count Two in case number 3:16- cr-222, Solicitation to Commit a Crime of violence, in violation of 18 U.S.C. § 373:

Beginning in or around March of 2016 and continuing until on or about May 16, 2016, in the Northern District of Ohio, Western Division and elsewhere, the defendant, Yahya Farooq Mohammad, admits he solicited, commanded induced and otherwise endeavored to persuade another person to kill United States District Court Judge Jack Zouhary, a federal felony that has an element the use, attempted use or threatened use of physical force against a person on account of the judge's performance of his official duties under circumstances that strongly corroborate his intent.
While pending trial in Case Number 3:15-CR-358, Mohammad was detained in the Lucas County Corrections Center in Toledo, Ohio, in the Northern District of Ohio. United States District Court Judge Jack Zouhary was the presiding judge assigned to the case.
While detained, Mohammad met another inmate, Individual A, in the Lucas County Corrections Center and acknowledged to Individual A that he wanted to hire someone to kill Judge Zouhary. Mohammad agreed to pay $ 15, 000 for the murder of Judge Zouhary.
Individual A provided Mohammad with the name and telephone number of an FBI undercover employee, hereinafter referred to as UCE, who was posing as an associate of Individual A who was capable of implementing the plan to kill Judge Zouhary.
In order to disguise their conversations, Mohammad and Individual A worked out a code to be used when Mohammad communicated with the UCE ...

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